Do You Really Want The Most Aggressive Divorce Attorney?

Aggressive or Effective

Do you really want the most aggressive divorce attorney you can find?  I like to distinguish between attorneys who are aggressive and attorneys who are effective.  Attorneys who focus on being “aggressive” or “intimidating” don’t do either parent or the kids any favors. And they aren’t effective, either.

An Example

A recent experience demonstrates the difference particularly well:

I represent Karen in a divorce. Karen and Paul have few assets. There’s no good reason for Karen and Paul to hate each other more after their divorce than they did when they decided to get divorced.

But they have two children. It goes without saying that fighting over custody of children can provoke parents unlike any other dispute. Yet, in almost every case, divorcing parents have to cooperate and communicate for years, maybe decades, after their divorce. Part of a divorce attorney’s job has to include helping the client understand that being civil with the other parent is important for the kids.

Formal Discovery

Halfway through Paul and Karen’s divorce, Paul hired a new attorney, Caleb.  Caleb introduced himself to me by serving me with “formal discovery.” Formal Discovery is a demand that questions be answered in writing or orally, under oath. It’s very . . . formal. And therefore, it is expensive, time-consuming, unnecessary, and, generally discouraged in “low net worth” divorces in Minnesota. I e-mailed Caleb that formal discovery was unnecessary and that the judge would probably not allow it.

Hennepin County judges routinely issue identical orders regarding discovery. I copied and pasted the standard language, which this judge had also used, to help orient Caleb to the nature of this case.

He Subpoenaed WHO?!

Caleb responded . . . wait for it . . . aggressively. He said, via letter, that he could issue formal discovery if he wanted to, and he punctuated his tirade with subpoenas for three non-parties to each produce two years’ worth of records about their income, personal expenses, personal bank accounts, and businesses. He also served informal discovery, which was identical to the formal variety but under a different title. I don’t want you to miss the point: Caleb was proving to everyone just how “aggressive” he could be.

I reassured Karen that she would not be deposed and that her mother and her church — yes, he subpoenaed her church for whom she sometimes answered the phones and her mother! — would not need to respond to these ridiculous subpoenas. I filed a one-page motion to quash the subpoenas.

The judge agreed with me: I had no doubt she would. Caleb withdrew his subpoenas.

After all of this, I reiterated to Caleb my offer to copy all the records that he needed to fully understand Karen’s finances. I have to disclose these things under the court rules, anyway.

Billing for Large Law Firm Costs

Each version of Caleb’s discovery was about twenty pages of very specific questions about banking records, income, expenses, and such. No matter that Karen had been a stay-at-home mother and Paul’s dad had always done the family’s taxes. But divorce attorneys generally bill by the hour, and Caleb had produced about 40 pages of legal documents, served each one by fax and U.S. mail, employing his law firm’s paralegals and secretaries and billing Paul for their time as well as his own. Caleb works at a big, downtown firm and has an office on the 41st floor. Someone has to pay that rent.

Caleb’s aggressiveness gained his client nothing and cost him thousands of dollars and the judge’s goodwill — as soon as he opened his mouth she ruled against him.

I charge flat fees for most divorce representations, so Caleb’s antics cost me some time, but they fell well within what Karen had already paid as a fee for the intermediate stages of this divorce.